With sentence no. 1419/2023, the Court of Appeal of Milan, ruling on the liability of entities for criminal offences pursuant to Legislative Decree 231/01, declared that there was no need to proceed against a company that was cancelled from the Company Register following liquidation.
In particular, the Court of Appeal of Milan, taking up a previous case law of the Court of legitimacy, established that “on the subject of the criminal liability of entities, the physiological and non-fraudulent extinction of the entity determines the extinction of the offence provided for by Legislative Decree no. 231 of 8 June 2001, recurring in a case similar to the death of the defendant“.
Consequently, it has deemed that, like death, it would make no sense to sanction a subject who no longer exists, ‘as the trial would be unnecessarily conducted, with an uneconomic waste of time and energy‘.
The decision to apply the rules on the death of the defendant set out in Article 69 of the Code of Criminal Procedure is based on the fact that Legislative Decree 231/2001 only regulates the events inherent in the transformation of the entity referred to in Article 70, i.e. the merger or demerger, but not its extinction, which can therefore only be dealt with by applying the rules of criminal proceedings for natural persons pursuant to Article 35 of Legislative Decree 231/2001.
The Court of Appeal of Milan also wanted to emphasise that the sanctions applied to entities, like those applied to individuals, must also fulfil the traditional retributive and re-educative function referred to in Article 27 of the Italian Constitution, which sets out the fundamental principles in criminal matters.
This is because, in the context of the liability referred to in Legislative Decree No. 231/2001, since no objective liability is envisaged, entities are punishable only in the event of ‘fault of organisation’, i.e., in the presence of an organisational structure that is objectively negligent in adopting the necessary precautions to prevent the commission of offences.
In the present case, according to the Court, the sanction would lose the purposes set out by the constitutional principle since no educational effect would be possible given the supervening non-existence of the subject, just as the more markedly retributive function would end up being borne by the beneficiary shareholders of the final liquidation balance sheet, individuals other than the one on whom the sanction would be imposed.
The ruling in question is of fundamental importance since the Judges of merit decided to apply a case law of the Court of Cassation that seemed to have been superseded, by virtue of the most recent rulings in which the Court of Cassation had, on the contrary, established that “the cancellation of the entity from the register of companies does not determine the extinction of the offence provided for by Legislative Decree. 231 of 8 June 2001, committed in the interest and to the advantage of the same” in that “the extinction of the legal entity follows the direct transfer of the ownership of the company to the individual shareholders, since the relationships that arose prior to the dissolution do not disappear” (Court of Cassation No. 37655/2023).
We will see how and whether the Joint Sections will intervene on this point.
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