Decree 231, company acquitted if the offender is only a consultant

A mere consulting relationship between the offender and the company is not sufficient to establish the liability of the entityon the basis of Decree 231. Indispensable is the qualification as an employee. This was pointed out by the Cassazione with sentence no. 19096 of the Fifth Criminal Section, filed yesterday, which upheld the appeal presented by a limited company operating in the energy sector, sanctioned by the judges of merit for having benefited from the operations of embezzlement of oil products devised by a criminal association. Guilt ascribed to the company by virtue of the consulting relationship that linked it to one of the main protagonists of the organisation.

The Supreme Court distances itself from the conclusions reached by the Court of Appeal, which had confirmed some of the measures against the company. The ruling first of all recalls that for the configurability of the entity's liability, in addition to the interest or advantage derived from the crime there is also the existence of the qualified relationship between the entity and the perpetrator of the predicate crime. "Only in the presence," reads the text of the ruling, "of the subjective link between the offender and the body and the teleological link between the offence and the body is it possible to configurethe administrative liability of the body, because only in the presence of such links can it be considered that the body is liable for its own deed and not for the deed of others.

Central to this is the exercise of management and control powers over the entity, powers that may be anchored to an explicit qualification, but may also be de facto exercised without a formal assignment. Also of relevance is the relationship between the entity and persons subordinate to those in a de facto or de jure apical role. However, in order to prevent the liability ascribed to the company from taking on the appearance of strict liability, the jurisprudence, reconstructs the Supreme Court, developed the category of 'guilt by organisation'.

In other words, the entity may be held liable for not having put in place a series of preventive measures capable of avoiding offences included in the catalogue of those expressly provided for by Decree 231. And so the offender's conduct must be the consequence not so much of a subjective attitude on the part of the natural person, but rather of a negligent organisational set-up on the part of the company, which was incapable of setting up that entire system of precautions, organisational and managerial, necessary for prevention.

In this context, the relevance of the relationship between the perpetrator of the offence and the entity emerges, in the absence of which the offence cannot be attributed to the entity even from an objective point of view. The Court of Cassation then emphasises that the judges of merit were incapable of clarifying the professional link between the architect of the criminal organisation and the company benefiting from the conduct, from time to time qualifying him as a consultant or an employee in the commercial sector of the family business. An uncertainty that makes it impossible to substantiate the conviction.