Economic law

Decree 231, reform ready. Extinction of the crime (with confiscation)

Articulated developed by the working group of the Ministry of Justice. Mechanism foreseen to avoid duplication of sanctions

by Giovanni Negri

15 April 2025

4' min read

Key points

Imputation criteria
The control system
Fitness assessment
Simplified procedures
No to bis in idem
The presumption
Extinguished offence
Adaptation proposal
Cancelled crime

4' min read

Definition of an organisational fault and abandonment of the distinction between top management and employees; reduction of sanctions for small entities; cases of extinction of the administrative offence. The reform text of the 2001 decree 231 on the administrative liability of entities prepared by the working group set up at the Ministry of Justice is ready. The text is now before Minister Carlo Nordio for the green light for a long-awaited intervention on one of the cornerstones of the criminal law of the economy.

The imputation criteria

The new features are numerous and significant. Starting with the criteria for imputation, where organisational fault becomes a constituent element of the offence and the distinction between offences committed by senior management and offences committed by employees disappears, as does the reference to fraudulent evasion of models. The entity, in fact, is liable for the offence when it has not adopted and effectively applied a model of organisation suitable for preventing offences of the kind that have occurred; when, despite the adoption and application of the model, persons have committed the offence by violating it, if the offence was facilitated by an omitted or insufficient control activity.

The control system

The proposal does not make exclusive reference, as in the current text of the decree, to the omission or insufficient supervision by the supervisory body, but identifies the internal control system. In the intentions of the ministry's technicians, the consideration of the supervisory body alone is insufficient, since its control function is systemic: on the one hand, it is called upon to assess, over time, the adequacy of the model (proposing additions when necessary); on the other hand, it is the holder of control powers outside the chain of the individual decision-making process. The articles aim to enhance the entire system of controls, which is entrusted with the supervision of the correctness of decision-making processes, within the scope of which are all the activities aimed at reducing 231 risks.

The suitability assessment

As for the traditionally critical point of assessing the suitability of the model, this can only be entrusted to the judge. However, the latter, similarly to what happens for the determination of the professional negligence of the doctor, must take into account the guidelines drawn up by the representative associations of the entities, the standards accredited by the technical-scientific community as well as the good practices, provided that they are adequate to prevent the offence.

Simplified procedures

The Ministry of Justice may then develop simplified procedures for the adoption and implementation of the organisational model in small entities.

No to bis in idem

Unprecedented then is the proposal to introduce a discipline aimed at avoiding the overlapping of sanctions when the subjectivity of the body is not concretely distinguishable from the person who committed the offence. In these cases, the judge in imposing the sanction on the entity will also have to take into account the measures imposed on the perpetrator of the offence, proceeding to a reduction that can be anchored to the grouping criteria already provided for by the Criminal Code in Article 135.

The Presumption

There is a coincidence between the subjectivity of the entity and that of the perpetrator of the offence, when the offence is committed by a person in an apical position who is the sole owner or holds a large majority shareholding in the entity and an appreciable organisational structure is absent, also due to the small number of employees and collaborators.

Extinguished offence

There is also room, this an absolute novelty, for a procedure of extinction of the offence. Provided that it is not a case of repetition, the entity that, prior to the commission of the offence, adopted and implemented the organisational model in accordance with the established structure, may ask the judge, within thirty days of the notification of the notice of conclusion of the preliminary investigation, for a time limit to eliminate the deficiencies of the model found by the public prosecutor that determined or facilitated the commission of the offence.

Adaptation proposal

The request, which must be communicated to the prosecutor, must contain a model reorganisation proposal, as well as an offer of compensation for damages, an indication of the activities that the entity undertakes to carry out to eliminate the harmful or dangerous consequences of the offence, and the provision of the profit obtained.

Cancelled crime

The judge, if the fact is not particularly serious with regard to profit or pecuniary damage, schedules a hearing to evaluate the request and indicate any further steps to eliminate the critical aspects of the model. The judge, if he accepts the request, decides on the suspension of the proceedings and fixes the time limit within which the proposal to reorganise the model must be realised and the restorative conduct must be carried out, determining a amount of money as bail.

If the activities envisaged are carried out within the time limit indicated or extended, the judge, having heard the public prosecutor and the other parties, shall declare by judgment the extinction of the administrative offence charged against the entity, ordering the confiscation of the profit made available.