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2019 was a particularly interesting year for the administrative liability of legal entities. Indeed, during the year just ended, d. lgs. n. 231/2001 was directly affected by as many as three different legislative interventions that led to the introduction of two new articles (respectively, Articles 25 quaterdecies and 25 quinquiesdecies) and to the amendment of a number of already existing provisions (above all, Article 25). The purpose of this paper is to provide a small overview of the most relevant innovations as well as some general considerations on the impact that said changes are likely to have in updating the organisation, management and control models adopted by Legal Entities.
At the beginning of last year, the list of offences relevant to d. lgs. n. 231/2001 was affected by the intervention carried out by the legislator with Law No. 3 of 9 January 2019, “Measures to combat crimes against the public administration, as well as the statute of limitations and the transparency of political parties and movements” - better known as ‘Spazzacorrotti’ (Sweep Away Corruption) Law - entered into force on 31 January 2019.
The legislative intervention, generally aimed at strengthening the fight against crimes against the Public Administration, consists of a series of measures aimed at increasing the main and accessory penalties for corruption offences, at making preliminary investigations more effective and at limiting the access of those convicted of said types of offences to prison benefits. In particular, and with specific regard to Legislative Decree no. 231/2001:
It is clear that these innovations will have a related impact on the organisation, management and control models adopted by Legal Entities, given that these changes, in practice, concern areas and procedures that are most likely already subject to adequate controls since they are inherent to the, ever-existing, wide range of crimes against the Public Administration.
Therefore, it is plausible to believe that, beyond an always useful update of the sections of the model dedicated to the in-depth analysis and description of the various types of offences, such legislative intervention is unlikely to have a substantial impact with regard to the principles of conduct that top management and subordinates will be required to comply with on the basis of the models pursuant to Legislative Decree No. 231/2001 that may be adopted by the Legal Entity to which they belong.
Subsequently, as of July, Article 5 of Law No. 39 of 3 May 2019 (“Ratification and implementation of the Council of Europe Convention on the manipulation of sports competitions, concluded in Magglingen on 18 September 2014”) introduced Article 25 quaterdecies in Legislative Decree No. 231/2001.
By virtue of said provision, Legal Entities are now liable for the crime of fraud in sports competitions, abusive gaming or betting and gambling exercised by means of devices prohibited by Articles 1 and 4 of Law No. 401 of 12 December 1989 (“Interventions in the field of illegal gaming and betting and protection of fairness in the conduct of sporting events”) aimed at safeguarding the principles of fairness and ethics in the conduct of sports competitions, also in the interest of the community, by protecting the regularity of competitions themselves, preserving them from unlawful profit.
That being said, it is likely that the new conducts could be carried out, by way of example only, through the organization of clandestine betting activities concerning sporting events managed by CONI (Italian National Olympic Committee) or through the offer of money and/or other benefits to an athlete participating in a national championship organized by one of the sports federations acknowledged by CONI, in order to alter, in a negative way, the result of his/her performance.
Also in this case, it is clear that these innovations will have a related impact on the organization, management and control models, given that these conducts, in practice, seem to be feasible in a very limited number of cases and in relation to a rather specific group of Legal Entities.
4. December – Conversion into law, with amendments, of Decree Law No. 124 of 26 October 2019 (“Urgent provisions on tax matters and for non-deferrable expenditures”).
Finally, Article 3 of European Delegation Law 2018 gave the Government the power to implement Directive 1371/2017 on the protection of the European Union’s financial interests under criminal law (the so-called “PIF Directive”), thereby widening the range of predicate offences pursuant to Legislative Decree No. 231/2001 and modifying the system of penalties that can be imposed.
The aforementioned directive requires Member States to introduce forms of legal liability for Legal Entities with reference to “cases of serious crimes against the common VAT system”, where the concept of “seriousness” is defined taking into account the cross-border nature of the illegal actions and the high amount of damage caused to the financial interests of the EU (“total damage equal to at least 10,000,000.00 Euros”).
So, Article 39, paragraph 2, of Decree Law No. 124 of 26 October 2019, containing “Urgent provisions on tax matters and for non-deferrable expenditures”, had included among predicate offences fraudulent misrepresentation through the use of invoices or other documents for non-existent transactions referred to in Article 2 of Legislative Decree No. 74/2000. Subsequently, in December, when the Decree Law was converted into law (Law no. 157 of 19 December 2019), the Legislator introduced in new Article 25 quinquiesdecies some additional offences of a tax nature referred to in Legislative Decree no. 74/2000, in particular:
The impact of said provisions, contrary to what has been observed in relation to the abovementioned regulatory innovations, is likely to be disruptive. In fact, there is no doubt that following the formal inclusion of tax offences into the administrative liability system, Legal Entities shall have to implement their models - after careful risk assessment activities - by providing appropriate measures to manage the new tax risks that may arise. In particular, future organisation, management and control models shall provide, inter alia: the adoption of an adequate accounting system, supported by an equally effective management system; adequate information flows to the Supervisory Board, such as to allow the latter to identify anomalies requiring further investigation; the introduction of procedures for the detection and management of tax risk, whose compliance shall be guaranteed at all levels of the company organisation.
As we have seen, the year just passed has heralded several innovations, which had not actually happened for some time: during 2020, it is likely that various Legal Entities will feel the need to update their organization, management and control models in order to introduce the new instruments for the protection of legal assets indicated by the Legislator. Thus, the current year promises to be intense for professionals and operators in the sector, who will be required once again to provide their clients with answers and practical solutions.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with.
For further information please contact your counsel or send an email to the following address: corporate.commercial@advant-nctm.com
