The first months of 2024 can be considered crucial in the area of corporate criminal liability, as the legislator has already intervened twice by extending and amending the catalogue of ‘predicate offences’.
In particular:
1. with law no. 6/2024, which came into force on 8 February 2024, concerning “Sanctioning provisions on the destruction, dispersion, deterioration, defacement, defacement and unlawful use of cultural or landscape heritage and amendments to Articles 518-duodecies, 635 and 639 of the Criminal Code” the legislator intervened to strengthen the protection of cultural heritage, adding to the criminal provisions already introduced by Law 22/2022, which had also expanded the Catalogue of predicate offences, a further set of sanctions for conduct detrimental to cultural heritage.
With this intervention, the legislator amended Article 25 septiedecies of Legislative Decree no. 231/2001, entitled ‘regulation of the administrative liability of legal persons with regard to offences against the cultural heritage’, which is increased by a new ‘predicate offence‘, specifically the offence referred to in Article 518 duodecies of the Criminal Code ‘Destruction, dispersal, deterioration, defacement, defacement and unlawful use of cultural or landscape heritage’.
This offence punishes the conduct of (i) “whoever destroys disperses deteriorates or renders wholly or partially unusable or, where applicable, unusable cultural or landscape assets belonging to him or to others“; (ii) “whoever, other than in the cases referred to in the first paragraph, defaces or defaces cultural or landscape assets belonging to him or to others, or uses cultural assets in a manner incompatible with their historical or artistic character or prejudicial to their conservation or integrity“.
It should be specified that for the predicate offence in question, a fine ranging from three hundred to seven hundred quotas of a minimum value of € 77,469.00 and a maximum value of €1,084,559.00 shall be imposed on the entity.
2. With paragraph 9 of Decree-Law no. 19/2024, which entered into force on 2 March 2024, concerning the “Further urgent provisions for the implementation of the National Recovery and Resilience Plan (PNRR)”, the legislator intervened by amending Article 512-bis of the Criminal Code, entitled “fraudulent transfer of valuables”, recently inserted within Article 25 octies.1 of Legislative Decree no. 231/2001.
With this intervention, the legislature has in fact, albeit indirectly, amended Legislative Decree No. 231/2001 by adding a new criminally relevant conduct to the predicate offence under Article 512 bis of the Criminal Code.
In particular, the legislator added the following provision: “The same punishment as in the first paragraph shall apply to anyone who, in order to evade the provisions on anti-mafia documentation, fictitiously assigns to others the ownership of businesses, company shares or shares or corporate offices, if the entrepreneur or company takes part in procedures for the award or execution of contracts or concessions”.
It should be specified that for the predicate offence in question, the entity is subject to a monetary sanction ranging from two hundred and fifty to six hundred quotas for a minimum value of € 64,557.50 and a maximum value of € 929,622.00, as well as the application of all the disqualification measures set forth in Article 9, paragraph 2, such as: (i) the disqualification from carrying out the activity; (ii) the suspension or revocation of authorisations; (iii) licences or concessions functional to the commission of the offence; (iv) the prohibition to contract with the public administration; (v) the exclusion from facilitations, financing, contributions or subsidies; (vi) the prohibition to advertise goods or services.
However, Legislative Decree No. 19/2024 has been the subject of much criticism because, although it introduces into our legal system new types of offences closely related to the issue of safety at work, it does not regulate the liability of entities for offences, leaving the area covered by Legislative Decree No. 231/2001 uncovered for the time being.
This suggests that by 2024, also in view of the considerable resources made available through the PNRR for legislative reforms, the innovations in the area of the liability of ex. art. 231/2001 are not yet over…
DISCLAIMER: This article merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi which assumes no liability whatsoever for the content and correctness of the newsletter. The author or your contact in the firm will be happy to answer any questions you may have.