Judgment No. 23401 issued on June 15, 2022 by the Sixth Section of the Criminal Court of Cassation determined the conclusion of the well-known “Impregilo case”.
The matter arose from accusations directed at the Chairman of the Board of Directors and the Chief Executive Officer of the parent company, who allegedly communicated to the market false information concerning budget forecasts and the solvency of a controlled company placed in liquidation. The company was therefore charged with the administrative offense under Article 25-ter, letter r) of Legislative Decree 231/2001, relating to the crime of market manipulation under Article 2637 of the Criminal Code, which, according to the prosecution’s reconstruction, would have been committed in the interest and for the benefit of the company itself.
The judgment analyzes in depth the operational system of Legislative Decree 231/2001, focusing in particular on three issues of primary importance: 1) the suitability of the 231 model; 2) the competencies and autonomy of the Supervisory Body; 3) the fraudulent circumvention of the model by top-level subjects.
The Suitability of the 231 Model
Pursuant to the provisions of Legislative Decree 231/2001, the liability of the entity derives from a complex factual situation in which the criminal act represents a mere prerequisite that, by itself, is not suitable to establish the administrative liability of the company. The criminal factual situation must indeed be committed by a subject who stands in a qualified relationship with the company and who acts in the interest or for the benefit of the same. Furthermore, on the subjective level, there must exist in the entity, which is claimed to be involved in the criminal matter, the so-called “organizational fault”, that is, a specific organizational deficiency with respect to a model of diligence required of the entity itself.
However, it should be noted that, as recalled by the Supreme Court, the liability of entities for crimes committed by subjects in top-level positions has been constructed by the legislator according to a particular mechanism. Article 6 of Legislative Decree 231/2001 establishes that “the entity is not liable if it proves that […] the governing body has adopted and effectively implemented, prior to the commission of the act, organizational and management models suitable to prevent crimes of the type that occurred“. It is therefore fundamental to verify the suitability of the organizational model adopted by the company to reduce the risk of commission of the crimes indicated by Legislative Decree 231/2001 as prerequisite crimes. In verifying this characteristic, the mere commission of a crime does not equate to demonstrating that the model is not suitable. The legislator indeed intended to avoid punishing the entity according to a criterion of objective liability, providing that the risk of commission of the crime be considered acceptable at the moment when the prevention system cannot be circumvented except fraudulently. Therefore, for the purposes of attributing the administrative offense to the entity, the unsuitability or ineffective implementation of the model itself is necessary according to a normative conception of fault. In summary, according to the Court, “the entity is liable insofar as it has not provided itself with adequate organization, failing to observe the precautionary rules that must characterize it“. Therefore, in order for culpable liability of the entity to be established, the judges of legitimacy consider that it is “insufficient for the typical harmful result to be realized as a consequence of conduct in violation of a given precautionary rule” requiring that “the harmful result corresponds precisely to that danger which the violated precautionary rule was intended to address“. A causal correspondence between violation of the precautionary rule and the production of the harmful result is therefore necessary.
The Court, on the basis of such considerations, also highlights the concept of “alternative lawful conduct“, that is, the hypothesis in which compliance with the precautionary rule would not have allowed the elimination or reduction of the danger deriving from a given activity. Therefore, if “the event realized as a result of non-compliance with the precautionary rule proves to be unavoidable, there is no room for the assertion of fault“. It follows therefore that “the judge, in his evaluation, must ideally place himself at the moment when the crime was committed and verify its foreseeability and avoidability had the virtuous model been adopted according to the epistemic-evaluative mechanism of the so-called retrospective prognosis“.
Finally, the Court emphasizes that the judge is called upon to evaluate the model in concreto and not in abstracto. The review must therefore be limited to verifying the suitability of the model to prevent crimes of the type that occurred. It is thus excluded that judicial review of compliance acquires a totalizing scope, and must instead be directed at excluding the reiteration of offenses already committed.
The Competencies and Autonomy of the Supervisory Body
With reference to the role and competencies of the Supervisory Body, the judgment in question highlighted how such body, while not necessarily having to be external to the organizational structure of the entity, must nonetheless be equipped with autonomous powers with respect to the administrators.
The Panel then held that “a gap or weakness in a model may lead to identifying liability of the entity only if it has had causal efficiency in the commission of the prerequisite crime by the top-level subject, in the sense that the conduct of the latter was made possible, even concurrently, precisely by the absence or insufficiency of the prescriptions contained in the model“. It is therefore necessary, for the purposes of the existence of liability of the entity, that the existence of a causal nexus between the deficiency of the model and inadequate guarantee of autonomy of the supervisory body be demonstrated.
As regards the issue of the powers of the supervisory body over the acts of the representative body and the administrators of the entity, it is necessary to determine to what extent it is legitimate to require that such acts also be subject to review, particularly if of a preventive type, by the body itself. In this regard, the Supreme Court considers that the legislator’s choice to keep the liability of the entity distinct from that of its top management, attributing to the former only conduct related to the so-called “organizational fault”, constitutes the measure of the interference permitted to the supervisory body over the acts of top-level subjects and therefore the content of the model so that it may be deemed suitable.
The supervisory body, therefore, cannot have managerial characteristics, which would only serve to undermine its autonomy. According to the Court, it “rather has the task of continuous systemic review of the precautionary rules provided for and of compliance with them within the organizational model with which the entity has equipped itself“.
Fraudulent Circumvention of the Model
Article 6, paragraph 1, letter c) of Legislative Decree 231/2001 provides that the entity may escape liability for a crime for an act committed by top-level subjects if they have committed the crime “by fraudulently circumventing the organizational and management models“. The entity is not liable in the event that top-level subjects have engaged in conduct that is “deceptive, falsifying, oblique, devious, such as to frustrate through deception the diligent compliance with the rules by the entity“.
The entity may therefore be exempt from liability where the conduct held by the top-level body represents a dissociation of the same from the company’s policy. In such case the crime must constitute the product of a personal choice of the natural person, realized not as a result of organizational inefficiencies, but rather despite adequate organization, through deceptive conduct. Fraudulent circumvention must therefore be evaluated with reference not to the criminal precept, but rather to what is provided for in the adopted organizational model, and must represent an execution modality of the conduct of the top-level subject and not also a constitutive element of the crime committed by the latter.
