With judgment No. 4210/2024 of 31 January 2024, the Court of Cassation, ruling in a proceeding pursuant to Legislative Decree No. 231/2001 relating to an accident at work, although declaring inadmissible the appeal filed by the Entity, reiterated yet again that the assessment of the Entity’s liability cannot disregard the proof of the existence of the factual and legal elements constituting the offence, even where the Entity has not concretely adopted an Organisation, Management and Control Model (“MOG“).
In the case in question, the Court of Appeal of Bologna, to whose decision the case had been referred again by the Court of Cassation, had declared liability for the offence referred to in Article 25 septies, paragraph 2, of Legislative Decree No. 231/2001, and sentenced the Entity to pay the penalty of 200 quotas for a total amount of €100,000.00.
Following that ruling, the organisation filed a new appeal to the Court of Cassation, putting forward, inter alia, a complaint alleging breach of law and failure to state reasons in relation to the existence of a lack of organisation.
In particular, in its appeal, the Entity complained that the Appeal Judges, in affirming the existence of ‘organisational guilt‘, had based their conviction on the concepts of guilt of natural persons and omission of organisational and management models, overlapping the level of the existence of the predicate offence with that of the Entity’s liability, thus confusing the guilt of natural persons with the organisational guilt of the Entity.
Following this second appeal before the Court of Cassation, the court, in noting the difference between the difference the Entity’s liability deriving from a crime and the assessment of the criminal liability borne by the person committing the predicate offence, reiterated the already consolidated principle according to which “for the purposes of the configurability of the liability of entities for a crime, the structure of the offence charged to the entity is centred on the predicate offence, with respect to which the current functional relationship between the offender and the entity and the teleological relationship between the offence and the entity have the sole function of strengthening the relationship of organic identification, excluding that an offence committed by a person hinged on the organisation but for purposes unrelated to the organisation’s purposes can be attributed to the moral person (Sez. 4, no. 32899 of 08/01/2021, Castaldo).
This principle, in the opinion of the Court of Cassation, makes it possible to affirm that the Entity is liable for its own deed and not for the deed of others, without excluding possible profiles of merely strict liability; in this respect the ruling reiterates ‘the need for the so-called fault of organisation of the Entity to exist, i.e. the failure to have put in place a set of preventive measures capable of avoiding the commission of offences of the type committed‘ and furthermore in relation to the ‘fault of organisation’, that the failure to adopt or the ineffective implementation of the MOG foreshadowed by the legislation ‘cannot be considered as a constituent element of the typical nature of the offence committed by the entity, but constitutes a circumstance capable ex se of demonstrating that there is a fault of organisation, which must, however, be specifically proven by the prosecution’.
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